Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

27 May 2009

Geeky Leftover Sausage Links

OK, so I didn't get around to posting again yesterday. Consider these the leftovers.

At least for IP nerds like me (that's right: I'm a civil procedure geek, but an IP nerd), there's a fascinating piece at the IP Financing blawg that asks how much should be spent on anticounterfeiting measures. It's a difficult question that is extremely subject-bound: There isn't a "right" answer, as it obviously depends upon a whole variety of factors. They are factors that the publishing industry isn't paying any attention to, though, so...

The California Supreme Court's decision in Strauss (this round of the Proposition 8/gay marriage dispute) demonstrates something that is both disturbing and true: Not everything that is stupid, bigoted, and an intrusion of explicitly theological doctrine on government rises to the level of "unconstitutional enough to overturn." I disagree with the soundness of this particular lemma; but then, I've spent enough time studying and in nation-states that do not have a truly independent judiciary to have a far more intensive (and nuanced) appreciation for the countermajoritarian duty of courts than seems common in the American mainstream. I can't, however, criticize that lemma as an inaccurate statement of American law as it descends from stagnans stare decisis  the reification of precedent as (virtually) Holy Writ.

Except, of course, that sometimes ideology  and ideology alone, without regard to any evidence or logic  results in overturning of precedent... by that supposed paragon of judicial restraint Justice Scalia. In Montejo v. LouisianaNo. 071529(PDF) (26 May 2009), Justice Scalia, writing for a 54 majority, overturned a 20-year-old precedent on the ground that

We do not think that stare decisis requires us to expand significantly the holding of a prior decision  fundamentally revising its theoretical basis in the process  in order to cure its practical deficiencies. To the
contrary, the fact that a decision has proved "unworkable" is a traditional ground for overruling it.

(slip op. at 13; citation to inapposite opinion omitted). As the dissent points out, though, "the evidence is overwhelming that Jackson's simple, bright-line rule has done more to advance effective law enforcement than to undermine it." (slip op. at 8). Indeed, how is a bright-line test of this nature logically within the realm of "difficult-to-apply" or otherwise impracticable? No, the problem is that the temptation to continue interrogation is difficult to resist; once upon a time, so was the temptation to lynch civil-rights workers.

I think what Justice Scalia understands stare decisis to mean is that one must absolutely respect precedent that is "right"... but that precedent that is "wrong" or "goes too far" is subject to constant revision and even rejection. Would someone please explain to me how this is not "judicial activism"?

In the meantime, though, Iqbal is going to come back to bite everyone who practices civil litigation in which "intent" ever becomes an issue. This gets off into civil-procedure-geek territory very quickly, so I'll just outline the problem here, and mention a couple of implications.

Ashcroft v. Iqbal, No. 071015(PDF) (18 May 2009), concerned lawsuits filed by post-9/11 detainees who were taken into custody in the US and wished redress for the manner, means, and conditions of their confinement. Justice Kennedy took the opportunity of this hard case to make bad law on both the substance... and the procedure. Ignoring seventy years of practice and the text of the Federal Rules of Civil Procedure themselves, Justice Kennedy imposes an irrational heightened pleading standard on plaintiffs whose complaints implicate any question of the intent of a federal official:

It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks [on September 11, 2001] would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. On the facts respon­dent alleges the arrests Mueller oversaw were likely law­ful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts.

(slip op. at 18). The logic problem with rejecting as sufficient allegations that FBI Director Mueller and Attorney General Ashcroft's conduct was discriminatory, though, is that the underlying cause of action does not require proof of intent: Discrimination by government officials on racial, ethnic, religious, gender, and/or national origin grounds is unlawful. Period. That there may also have been a "justification" available for the discrimination goes properly to the question of remedy  not to liability. This is where Justice Kennedy goes so very wrong, because the decision he relies upon  Twombly  concerned conduct that by definition leads to liability only when it is intentional: conspiracy to commit antitrust violations. And even then, under the heightened pleading standards for fraud provided by Fed. R. Civ. P. 9(b), "Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally" (in English, one is allowed to merely plead the legal conclusion that an act actually committed was knowing and/or intended).

The only logic behind Justice Kennedy's application of a heightened pleading standard is the longstanding refusal to extend "implied rights of action" such as this one to personal actions against supervisors merely because they were supervisors (slip op. at 1113). That, however, is not what was at issue in this matter, despite the attempts to so characterize the complaint (which I have read). And here, a plea for some logical consistency in the way opinions get presented: When one is assessing whether a complaint (or other pleading, such as a counterclaim) makes sufficient "factual" allegations or is merely "conclusory," one should quote the material being examined  not just spout forth conclusory summaries of what is allegedly conclusory. The allegedly deficient pleadings are only a few pages long in typescript, and would not be out of place as an appendix to this opinion.

Ultimately, this is going to prove a considerable problem in the next few years as plaintiffs try to plead undue influence, intentional infringement of IP rights, and other aspects of matters that would otherwise go to the remedy, not to core liability. Iqbal improperly moves such matters from "notice pleading" under Fed. R. Civ. P. 8 to "quasi-fact pleading" under Fed. R. Civ. P. 9(b), by making any question of intent one that must be plead "with particularity"  and that's awfully hard to do as to a corporate or government actor, let alone when suing John Does because one doesn't know exactly what persons in an organization personally did particular things! I've come to expect this kind of shortsightedness (and allegiance to holding the center on substance through use of dubious procedural mechanics) when Justice Kennedy veers into civil procedure; I'm disappointed that he fully met my expectations in Iqbal.

The Fine Print

Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not constitute legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.

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Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.

I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.

Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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